May 20, 2015

S. 1123 – USA FREEDOM Act

Noteworthy

Floor Situation: This bill has been introduced and referred to the Judiciary Committee. The Senate may have a vote in connection with this bill this week.

Executive Summary: It is the stated purpose of this bill to end the Patriot Act section 215 telephone metadata program. It replaces that program with an unplanned and untested mechanism where telecommunications providers are relied upon to retain call data records and queries are run against those records. The government can obtain call detail records related to a specific selection term and one “hop” from it upon a showing to the FISA court that there is reasonable, articulable suspicion that the “seed” number is associated with a foreign power engaged in international terrorism. Upon this showing, the FISA court may issue an order directing the prospective production of call detail records. Production of historical call data records would necessarily be more limited than what is available under the current program given the data retention practices of the telecommunications companies.

Overview of the Issue

Currently, the government seeks an order from the FISA court directing telecommunications companies to provide call detail records to the government. The government is then able to aggregate that metadata into a single database. That database is protected at a highly secure facility, and only a very small number of people can query it. In August 2013, Senator Feinstein explained how in 2012 the database had been queried fewer than 300 times. As of February 2014, a phone number can be used to query the database only upon a finding by the FISA court that there is reasonable, articulable suspicion that the number was connected to international terrorism.

In place of the current program, the bill creates a system that is less agile and more burdensome. Telephone call records would remain with the individual phone companies. The Federal Communications Commission requires they be retained for only 18 months, and this bill has no other data retention requirement. In order to perform a query comparable to what is done today, the government would likely have to obtain multiple court orders directed at multiple third parties. It is the aggregation into one database and its historical breadth that makes the current program valuable. Those attributes are eviscerated by this bill. Its practical effect is to make it more difficult for the government to seek call records from third parties.

In speaking about this bill, Senator Leahy complained that the government was not vigilant in protecting this acquired data, as it “allowed a private contractor named Edward Snowden to walk away with all this material” compromising the existence of the program. Senator Leahy’s solution is to keep the information with telecommunications providers, where it would be less secure. When the database is housed at the National Security Agency, it has all the protections of that agency against outside intrusion, and there are very few people authorized to query the database. The database for this program has never been abused.

In addition to terminating the metadata program, the bill makes substantial changes to the practices of the FISA court. For example, section 401 requires the appointment of amicus in the court’s proceedings to advocate “legal arguments that advance individual privacy and civil liberties.” Section 402 requires the publication to the greatest extent practicable of FISA court actions that include a significant interpretation of “specific selection term,” which can be waived if the director of national intelligence produces a summary of the interpretation.

The amicus provision is apparently in response to concerns about the ex parte nature of FISA court proceedings in which only the federal government appears. There is nothing inherently wrong with ex parte proceedings, as they are a common occurrence in the federal judiciary.

Moreover, the director of the Administrative Office of the U.S. Courts has written to Congress to express his concern, formed by consulting with FISA court judges, that these provisions may impede the work of the court and “impair the courts’ ability to protect civil liberties.” The FISA court is not opposed to a true amicus provision per se, as the letter praised the approach contained in the FISA Improvements Act of 2013.

The letter went on to explain how the section 402 requirement to create summaries of opinions “is unprecedented in American legal administration” and can be “inadvertently incorrect or misleading.”

Despite his complaints about the program at issue, President Obama continues to reauthorize it every 90 days, most recently on February 27, 2015.

Notable Bill Provisions

Title I – Business records reforms

Section 101 – Acquiring call detail records

Provides a mechanism for the government to obtain a FISA court order for the production of call detail records from telecommunications providers. The government must show there is reasonable, articulable suspicion that a specific selection term, i.e., a phone number, is associated with a foreign power engaged in international terrorism. Upon this showing, the FISA court may issue an order directing the prospective production of call detail records associated with this number and a number that is one “hop” from the original “seed” number. This codifies current practice with respect to hops under President Obama’s Presidential Policy Directive 28 issued January 17, 2014.

Section 102 – emergency authority

Creates an emergency authority for the attorney general to require the production of tangible things if the attorney general determines an emergency situation requires such production before a court order authorizing production can be obtained.

Section 103 – Banning bulk collection of tangible things

Requires the use of “specific selection term … as the basis for the production of the tangible things sought.”

Section 105 – Liability protection

Provides that no cause of action shall lie against any person who provides information or technical assistance pursuant to a court order requiring the production of tangible things.

Section 106 – Compensation

Directs the government to compensate parties for reasonable expenses incurred for complying with an order for the production of tangible things.

Section 107 – Definitions

Provides definitions for the bill, including specific selection term, which is defined as “a term that specifically identifies a person, account, address, or personal device, or any other specific identifier; and is used to limit, to the greatest extent reasonably practicable, the scope of tangible things sought consistent with the purpose for seeking the tangible things.” It provides that this cannot be a broad geographic region, or an area code.

Section 109 – Transition period

Provides that sections 101-103 are to take effect 180 days after enactment. Provides a rule of construction that this bill shall not be construed to alter the authority of the government to obtain certain FISA orders as that authority existed prior to this effective date.

Title II – FISA pen register and trap and trace device reform

A pen register is a device to record the incoming phone numbers to a particular phone. A trap and trace device captures the outgoing numbers that phone called.

Section 201 – Banning bulk collection of tangible things

Similar to section 103, requires the use of a “specific selection term.”

Title III – FISA acquisitions targeting persons outside the United States

FISA section 702 authorizes an electronic surveillance program carried out in the United States directed at targeting foreign persons reasonably believed to be located outside the country for a significant foreign intelligence purpose. It provides the attorney general and director of national intelligence may jointly develop targeting procedures to carry out this program, which are to be approved by the FISA court. This title adds a rule of evidence to this program providing that if these procedures are later found to be deficient, information concerning a U.S. person collected pursuant to procedures identified as deficient shall not be used in an adjudicative proceeding. The Senate rejected a similar proposition offered by amendment on February 7, 2008, by a vote of 40-56.

Title IV – FISA court changes

This title provides makes substantial changes to the practices of the FISA court.

Section 401 – Amicus

Directs the court to designate at least five individuals who can serve as amicus in the court’s proceedings to advocate “legal arguments that advance individual privacy and civil liberties.” The amicus must be appointed in any case involving a “novel or significant interpretation of the law” unless the court issues a finding that such an appointment is not appropriate.

Section 402 – Opinion publication or summaries

Requires the publication to the greatest extent practicable of FISA court actions that include a significant interpretation of “specific selection term,” which can be waived if the director of national intelligence produces a summary of the interpretation.

Title VI – Reporting requirements

This title increases the reporting requirements related to FISA beyond the section 215 metadata program. Reports are required pertaining to FISA court orders issued pursuant not only to the FISA business records provision, but many other elements of FISA as well, to include surveillance directed at non-U.S. persons outside the United States.

Title VII – Other provisions

Section 705 – Sunsets

After terminating the bulk metadata program, this section extends the three expiring FISA provisions, including the amendments made by Patriot Act section 215, to December 15, 2019.

Administration Position

The attorney general and director of national intelligence have issued a joint letter supporting this legislation “based on the existing practices of communications providers in retaining metadata.” They promise to notify Congress if they found that “provisions of this law significantly impair the Intelligence Community’s ability to protect national security.” 

The NSA director has said the transition to the new program model “is achievable within 180 days, with provider cooperation.” He further said he is “aware of no technical or security reasons why this [new program] cannot be tested and brought on line within the 180-day period.”

Cost

The CBO cost estimate for the House version of this bill says CBO does not estimate the costs of classified programs. It made no effort to estimate the costs of section 106, for example, which directs the government to compensate the private parties for reasonable expenses incurred in carrying out this bill.

Amendments

The amendment situation is unclear at this time.